Citation NR: 9801827
Decision Date: 01/23/98 Archive Date: 02/02/98
DOCKET NO. 95-14 654 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to an effective date prior to February 7, 1994
for a 10 percent evaluation for status post fracture of the
left ankle and status post arthrotomy of the left ankle.
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. L. Prichard, Counsel
REMAND
The veteran had active duty from August 1977 to February
1981.
Initially, the Board of Veterans’ Appeals (Board) finds that
the veteran has submitted evidence of a well-grounded claim
for entitlement to an earlier effective date for a 10 percent
evaluation for his left ankle disorder. Therefore, the
Department of Veterans Affairs (VA) has a duty to assist him
in the development of all facts pertinent to his claim.
38 U.S.C.A. § 5107(a) (West 1991).
The veteran submitted additional evidence for consideration
directly to the Board at the July 1997 hearing at the
regional office (RO). He has waived consideration of this
evidence by the RO.
The veteran has stated his contentions both in correspondence
and in person at the July 1997 hearing before the Board at
the RO. He contends that he is entitled to an earlier
effective date for a 10 percent rating for his service-
connected left ankle disorder. The record shows that the 10
percent evaluation was assigned for his disorder in a July
1994 rating decision, with an effective date of February 7,
1994. However, he further notes that a 10 percent evaluation
had been in effect for this disorder from February 1981 to
March 1982. The evaluation was then suspended and reduced to
zero percent due to failure to report for a VA physical
examination. The veteran contends that he did not receive
notice of this examination. Moreover, he also contends that
he never received notice that the evaluation was reduced to
zero percent. He believes that both the letter informing him
of the examination date and the letter notifying him of the
reduced rating were mailed to an old address. He states that
he notified the VA of his new address, and had already
received several letters on other matters at this new
address. Therefore, he believes the fault in the failure to
notify him of the examination and the reduction in his award
lies entirely with the VA, and that he is entitled to a 10
percent evaluation effective from the date of the reduction
to zero percent.
A review of the record shows that entitlement to service
connection for status post fracture left ankle; status post
arthrotomy left ankle was established in an April 1981 rating
decision. A 10 percent evaluation was assigned for that
disorder. The veteran was informed of this decision in an
April 1981 letter, addressed to P. O. Box 1246, Willows, Ca.
95988. The VA continued to correspond with the veteran at
this address until July 1981.
In August 1981, a letter was received from the veteran. He
listed a new address on the bottom of this letter. The
address listed was 390 Rio Lindo Apt. 52, Chico, Ca. 95926.
This address was apparently noted by the VA, and subsequent
letters from the VA to the veteran at this location dated in
September 1981, November 1981, and June 1982 are of record.
A VA Form 21-2507a, Request for Physical Examination, dated
December 1981 is contained in the claims folder. This form
lists the veteran’s address as the previous Willows, Ca.
location. A letter dated February 1992 informed the veteran
that his compensation payments were discontinued as a result
of his failure to report for a physical examination. This
letter was also mailed to the Willows, Ca. address. There is
no record of a reply from the veteran to this letter.
However, a memorandum date stamped January 1983 is contained
in the claims folder, in which the veteran expressed his
desire to receive a compensable evaluation for his left ankle
disorder.
The Board notes that there is no indication in the claims
folder that a change of address form was received from the
veteran. Furthermore, the claims folder does not contain a
copy of a letter informing the veteran that he was to be
scheduled for a new examination subsequent to December 1981.
Finally, there is no record that any correspondence sent to
the veteran was returned. Therefore, in order to assist the
veteran in the development of his claim and to afford him due
process, the Board remands this case for the following
development:
1. The RO should make a complete search
of the record of their correspondence
with the veteran. Copies of any change
of address forms, notification of the
examination scheduled for January 1982,
or notification of the reduction in
evaluation should be obtained if possible
and placed in the claims folder. If
letters were sent to more than one
address, then copies of both letters
should be obtained. Finally, pertinent
copies of mail log-in books, computer
printouts, telephone conversation log-in
books, or similar evidence that would
tend to show whether or not and at what
address the veteran was notified of the
scheduled examination and the reduction
in rating or if he replied to such
notification should be obtained if
possible and associated with the claims
folder.
2. After the development requested above
has been completed to the extent
possible, the RO should again review the
record and consider the veteran’s claim
in light of the available facts
concerning the relevant notices sent to
the veteran. If the claim remains
denied, the veteran should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
D. C. Spickler
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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